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Freedom of expression
Freedom of expression is not only important in its own right but is also essential if other human rights are to be achieved. At an individual level, freedom of expression is key to the development, dignity and fulfilment of every person.
The founding principles of freedom of expression
Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to freedom of expression in the following terms:
The UDHR, as a UN General Assembly Resolution, is not directly binding on states. However, parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law since it was adopted in 1948.
The International Covenant on Civil and Political Rights (ICCPR) elaborates upon and gives legal force to many of the rights articulated in the UDHR. It guarantees the right to freedom of expression in terms similar to those of Article 19 of the UDHR:
In September 2011, the UN Human Rights Committee (HR Committee), a treaty monitoring body for the ICCPR, issued General Comment No 34 in relation to Article 19.5. General Comment No.34 constitutes an authoritative interpretation of the minimum standards guaranteed by Article 19 of the ICCPR. It is particularly instructive about a number of issues relating to freedom of expression on the internet.
Importantly, General Comment No.34 states that Article 19 of the ICCPR protects all forms of expression and the means of their dissemination, including all forms of electronic and internet-based modes of expression. In other words, the protection of freedom of expression applies online in the same way as it applies offline.
At the same time, General Comment No.34 requires States party to the ICCPR to consider the extent to which developments in information technology, such as internet and mobile-based electronic information dissemination systems, have dramatically changed communication practices around the world. In particular, it states that the legal framework regulating the mass media should take into account the differences between print and broadcast media and the internet, as well as noting the ways in which the various media converge.
Further, in June 2012, the Human Rights Council unanimously adopted the landmark Resolution on the promotion, protection and enjoyment of human rights on the internet, affirming:
Earlier, in May 2011, in his report to the UN Human Rights Council, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, underscored that:
Similarly, the four special mandates for the protection of freedom of expression have highlighted in their Joint Declaration on Freedom of Expression and the internet of June 2011 that regulatory approaches in the telecommunications and broadcasting sectors cannot simply be transferred to the internet. In particular, they recommend the development of tailored approaches for responding to illegal content online, as well as pointing out that specific restrictions for material disseminated over the internet are unnecessary. They also promote the use of self-regulation as an effective tool in redressing harmful speech.
Limitations on the right to freedom of expression
While the right to freedom of expression is a fundamental right, it is not guaranteed in absolute terms. Article 19(3) of the ICCPR permits the right to be restricted in the following respects:
Restrictions on the right to freedom of expression must be strictly and narrowly tailored and may not put in jeopardy the right itself. Determining whether a restriction is narrowly tailored is often articulated as a three-part test. Restrictions must: (i) be provided by law; (ii) pursue a legitimate aim; and (iii) conform to the strict tests of necessity and proportionality.
(i) Provided by law
The law must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly. Ambiguous or overly broad restrictions on freedom of expression are therefore not permitted under Article 19(3).
(ii) Pursue a legitimate aim
It would be impermissible to prohibit information dissemination systems from publishing material solely on the basis that they cast a critical view of the government or the political social system espoused by the government. Similarly, a restriction on freedom of expression cannot be a pretext for protecting the government from embarrassment or exposure of wrongdoing, to conceal information about the functioning of its public institutions or to entrench a particular ideology.
(iii) Conform to the tests of necessity and proportionality
States party to the ICCPR are obliged to ensure that any legitimate restrictions on the right to freedom of expression are necessary and proportionate. Necessity means that there must be a pressing social need for the restriction. The party invoking the restriction must show a direct and immediate connection between the expression and the protected interest. Proportionality means that the least restrictive measure must be applied if it is capable of achieving the same purpose as a more restrictive one.
The above principles apply to electronic forms of communication or expression disseminated over the internet. In particular, the UN Human Rights Committee has said in its General Comment No. 34 that:
These principles have been endorsed by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, in his 2011 report. In that report, the Special Rapporteur also clarified the scope of legitimate restrictions on different types of expression online.
Regional standards
A number of regional instruments also guarantee the right to freedom of expression and information. African Charter on Human and Peoples’ Rights (the African Charter) guarantees the right to freedom of expression in Article 9 using the following terms:
The African Commission on Human and Peoples’ Rights (the African Commission) elaborated on Article 9 of the African Charter in October 2002, adopting the Declaration of Principles on Freedom of Expression in Africa (the African Declaration): In Article 1 it provides that:
Cybercrime and freedom of expression
Increasingly, countries are trying to regulate internet content through so-called “cybercrime legislation”. At present, there is no universal definition of the term “cybercrime”. The term is usually used to describe any traditionally defined crime that is committed using a computer network or the internet. It typically covers a wide range of criminal offences from terrorist activities and espionage conducted with the help of the internet and illegal hacking into computer systems, to running boot nets for the purpose of spreading spam emails and credit card fraud, phishing, theft and manipulation of data, and cyber-stalking, to name just a few.
Many of the recently adopted laws are, however, vague and overly broad and are therefore open to arbitrary and subjective interpretation, and threaten the protection of the right to freedom of expression. For example, in 2011, the UN Special Rapporteur on freedom of expression voiced the concern that:
However, international standards on cyber-security do recognise the importance of balancing security imperatives with fundamental human rights, in particular the right to freedom of expression. The UN General Assembly Resolution on the Creation of a global culture of cyber security states that:
Likewise, the Council of Europe Convention on Cybercrime (2001) states that parties must be:
It is noteworthy that this convention contains no content-based restrictions other than those relating to child pornography. It should also be mentioned that the convention recognises the potential for domestic cybercrime laws to target political dissent and allows states to refuse assistance to other states if that request is perceived to relate to a politically motivated prosecution.
Based on international standards, it can be concluded that legislation aimed at countering cybercrime has to be crafted in such a way that it is compatible with human rights law and international freedom of expression standards and must not be used to silence legitimate speech or to pursue critical citizens, human rights defenders, bloggers and journalists through electronic media. Cybercrime legislation should respect the proportionality principal that is fundamental to human rights protection and should meet the following criteria:
The advent of the internet means that any individual can now publish his or her own opinions and ideas on a blog or social media network. This raises the question of how journalism should be defined and what constitutes ‘media’ in the digital age. Equally, the question arises as to whether and, if so, how ‘citizen journalists’ and ‘bloggers’ should be regulated.
In short, there is currently no set definition of journalism or what constitutes ‘media’ in the digital age at an international level. Nonetheless, the UN Human Rights Committee has provided a tentative response, which is set out below. As far as the question of regulation is concerned, it is clear that international law does not require bloggers and citizen journalists to register, let alone register under their real name. However, there are no clear standards on the following two questions: first, whether, and if so, what professional standards should be applied to citizen journalists and bloggers; and secondly, whether citizen journalists and bloggers should be able to make use of a journalist’s right to protect his or her sources.
In its General Comment No. 34, the UN Human Rights Committee defined journalism as follows:
The UN Human Rights Committee has therefore taken a functional approach to the definition of journalism. In other words, journalism is an activity, which consists of the collection and dissemination of information to the public via any means of mass communication.
Regulation of bloggers and citizen journalists Registration
The UN Human Rights Committee’s definition of journalism (outlined above) clearly shows that, like professional journalists, bloggers should not be subject to registration or licensing requirements. Similarly, they should be accredited only where this is necessary to get privileged access to certain places and/or events.
Civil and criminal liability
The law does not generally make any distinctions between journalists and the rest of the population for the purposes of civil or criminal liability. Accordingly, bloggers and citizen journalists are not immune to the application of laws such as defamation laws. Nonetheless, the question arises as to whether bloggers and citizens should benefit from the same legal protections as journalists when they undertake the activity of journalism.
Legal protection
There are no set international legal standards concerning the legal protection which should be afforded to citizen journalists and bloggers at present. However, in the same way that bloggers have a duty, like any other citizen, to obey the law, they can also make use of the defences available to citizens under the law.
The question of whether bloggers and citizen journalists can avail themselves of legal principles governing the protection of sources is more controversial. For example, in Europe, the the Council of Europe (COE) has taken a similar approach in its recent Recommendation CM/Rec (2011)7. The Council of Europe's Committee of Ministers stated that:
However, it is not clear from the recommendation whether a blogger or citizen journalist could avail himself or herself of the protection of sources in relation to information received from internet users or others. Nonetheless, the Committee of Ministers has recommended that some form of support and protection should be provided to those media actors, e.g. bloggers, who do not fully qualify as media under a number of criteria set forth by the Committee but who do ‘participate in the media ecosystem’.
An extract from "Freedom of expression and ICTs: Overview of international standards" by Article 19: https://www.article19.org/data/files/medialibrary/37380/FoE-and-ICTs.pdf
Freedom of expression is not only important in its own right but is also essential if other human rights are to be achieved. At an individual level, freedom of expression is key to the development, dignity and fulfilment of every person.
- People can gain an understanding of their surroundings and the wider world by exchanging ideas and information freely with others. This makes them more able to plan their lives and to work,
- People feel more secure and respected by the state if they are able to speak their minds.
- They help ensure that competent and honest people administer the state. In a democracy, free debate about and between political parties exposes their strengths and weaknesses. This enables voters to form an opinion about who is best qualified to run the country and to vote accordingly. Media scrutiny of the government and the opposition helps expose corruption or other improprieties and prevents a culture of dishonest.
- They promote good governance by enabling citizens to raise their concerns with the authorities. If people can speak their minds without fear, and the media are allowed to report what is being said, the government can become aware of any concerns and address them.
- They ensure that new policies and legislation are carefully considered. Through public debate, members of the public with helpful opinions on a subject can present the government with a ‘marketplace of ideas’ from which to choose. Free debate about new legislation also helps ensure that the eventual law has the support of the population, making it more likely to be respected.
- They promote the implementation of other human rights. They help improve government policy in all areas, including human rights. They also enable journalists and activists to highlight human rights issues and abuses and persuade the government to take action.
The founding principles of freedom of expression
Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to freedom of expression in the following terms:
"Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers."
The International Covenant on Civil and Political Rights (ICCPR) elaborates upon and gives legal force to many of the rights articulated in the UDHR. It guarantees the right to freedom of expression in terms similar to those of Article 19 of the UDHR:
"1. Everyone shall have the right to freedom of opinion.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice."
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice."
In September 2011, the UN Human Rights Committee (HR Committee), a treaty monitoring body for the ICCPR, issued General Comment No 34 in relation to Article 19.5. General Comment No.34 constitutes an authoritative interpretation of the minimum standards guaranteed by Article 19 of the ICCPR. It is particularly instructive about a number of issues relating to freedom of expression on the internet.
Importantly, General Comment No.34 states that Article 19 of the ICCPR protects all forms of expression and the means of their dissemination, including all forms of electronic and internet-based modes of expression. In other words, the protection of freedom of expression applies online in the same way as it applies offline.
At the same time, General Comment No.34 requires States party to the ICCPR to consider the extent to which developments in information technology, such as internet and mobile-based electronic information dissemination systems, have dramatically changed communication practices around the world. In particular, it states that the legal framework regulating the mass media should take into account the differences between print and broadcast media and the internet, as well as noting the ways in which the various media converge.
Further, in June 2012, the Human Rights Council unanimously adopted the landmark Resolution on the promotion, protection and enjoyment of human rights on the internet, affirming:
"That the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights."
Earlier, in May 2011, in his report to the UN Human Rights Council, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, underscored that:
"Article 19 of the Universal Declaration of Human Rights and the Covenant was drafted with foresight to include and to accommodate future technological developments through which individuals can exercise their right to freedom of expression. Hence, the framework of international human rights law remains relevant today and equally applicable to new communication technologies such as the internet."
Similarly, the four special mandates for the protection of freedom of expression have highlighted in their Joint Declaration on Freedom of Expression and the internet of June 2011 that regulatory approaches in the telecommunications and broadcasting sectors cannot simply be transferred to the internet. In particular, they recommend the development of tailored approaches for responding to illegal content online, as well as pointing out that specific restrictions for material disseminated over the internet are unnecessary. They also promote the use of self-regulation as an effective tool in redressing harmful speech.
Limitations on the right to freedom of expression
While the right to freedom of expression is a fundamental right, it is not guaranteed in absolute terms. Article 19(3) of the ICCPR permits the right to be restricted in the following respects:
"The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals."
(b) For the protection of national security or of public order, or of public health or morals."
Restrictions on the right to freedom of expression must be strictly and narrowly tailored and may not put in jeopardy the right itself. Determining whether a restriction is narrowly tailored is often articulated as a three-part test. Restrictions must: (i) be provided by law; (ii) pursue a legitimate aim; and (iii) conform to the strict tests of necessity and proportionality.
(i) Provided by law
The law must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly. Ambiguous or overly broad restrictions on freedom of expression are therefore not permitted under Article 19(3).
(ii) Pursue a legitimate aim
It would be impermissible to prohibit information dissemination systems from publishing material solely on the basis that they cast a critical view of the government or the political social system espoused by the government. Similarly, a restriction on freedom of expression cannot be a pretext for protecting the government from embarrassment or exposure of wrongdoing, to conceal information about the functioning of its public institutions or to entrench a particular ideology.
(iii) Conform to the tests of necessity and proportionality
States party to the ICCPR are obliged to ensure that any legitimate restrictions on the right to freedom of expression are necessary and proportionate. Necessity means that there must be a pressing social need for the restriction. The party invoking the restriction must show a direct and immediate connection between the expression and the protected interest. Proportionality means that the least restrictive measure must be applied if it is capable of achieving the same purpose as a more restrictive one.
The above principles apply to electronic forms of communication or expression disseminated over the internet. In particular, the UN Human Rights Committee has said in its General Comment No. 34 that:
"Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government."
Regional standards
A number of regional instruments also guarantee the right to freedom of expression and information. African Charter on Human and Peoples’ Rights (the African Charter) guarantees the right to freedom of expression in Article 9 using the following terms:
"1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law."
2. Every individual shall have the right to express and disseminate his opinions within the law."
The African Commission on Human and Peoples’ Rights (the African Commission) elaborated on Article 9 of the African Charter in October 2002, adopting the Declaration of Principles on Freedom of Expression in Africa (the African Declaration): In Article 1 it provides that:
"1. Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.
2. Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination."
2. Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination."
Cybercrime and freedom of expression
Increasingly, countries are trying to regulate internet content through so-called “cybercrime legislation”. At present, there is no universal definition of the term “cybercrime”. The term is usually used to describe any traditionally defined crime that is committed using a computer network or the internet. It typically covers a wide range of criminal offences from terrorist activities and espionage conducted with the help of the internet and illegal hacking into computer systems, to running boot nets for the purpose of spreading spam emails and credit card fraud, phishing, theft and manipulation of data, and cyber-stalking, to name just a few.
Many of the recently adopted laws are, however, vague and overly broad and are therefore open to arbitrary and subjective interpretation, and threaten the protection of the right to freedom of expression. For example, in 2011, the UN Special Rapporteur on freedom of expression voiced the concern that:
"[L]egitimate online expression is being criminalized in contravention of States’ international human rights obligations, whether it is through the application of existing criminal laws to online expression, or through the creation of new laws specifically designed to criminalize expression on the internet. Such laws are often justified on the basis of protecting an individual’s reputation, national security or countering terrorism, but in practice are used to censor content that the Government and other powerful entities do not like or agree with."
"Security should be implemented in a manner consistent with the values recognised by democratic societies, including the freedom to exchange thoughts and ideas, the free flow of information, the confidentiality of information and communication, the appropriate protection of personal information, openness and transparency".
[M]indful of the need to ensure a proper balance between the interests of law enforcement and respect for fundamental human rights ... which reaffirm the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy.
It is noteworthy that this convention contains no content-based restrictions other than those relating to child pornography. It should also be mentioned that the convention recognises the potential for domestic cybercrime laws to target political dissent and allows states to refuse assistance to other states if that request is perceived to relate to a politically motivated prosecution.
Based on international standards, it can be concluded that legislation aimed at countering cybercrime has to be crafted in such a way that it is compatible with human rights law and international freedom of expression standards and must not be used to silence legitimate speech or to pursue critical citizens, human rights defenders, bloggers and journalists through electronic media. Cybercrime legislation should respect the proportionality principal that is fundamental to human rights protection and should meet the following criteria:
- Any legislation should provide for narrowly defined, clear and adequate definitions of key legal and technical terms covered by the offence.
- Legislation should require proof about the likelihood of harm arising from the criminal activity, including in relation to offences involving the obtaining or dissemination of classified information.
- Legislation should require the nature of the threat to national security resulting from any criminal activity to be identified.
- Legislation should provide for a public interest defence in relation to the obtaining and dissemination of information classified as secret.
- Legislation should refrain from imposing prison sentences for expression-related offences, except for those permitted by international legal standards and with adequate safeguards against abuse.
The advent of the internet means that any individual can now publish his or her own opinions and ideas on a blog or social media network. This raises the question of how journalism should be defined and what constitutes ‘media’ in the digital age. Equally, the question arises as to whether and, if so, how ‘citizen journalists’ and ‘bloggers’ should be regulated.
In short, there is currently no set definition of journalism or what constitutes ‘media’ in the digital age at an international level. Nonetheless, the UN Human Rights Committee has provided a tentative response, which is set out below. As far as the question of regulation is concerned, it is clear that international law does not require bloggers and citizen journalists to register, let alone register under their real name. However, there are no clear standards on the following two questions: first, whether, and if so, what professional standards should be applied to citizen journalists and bloggers; and secondly, whether citizen journalists and bloggers should be able to make use of a journalist’s right to protect his or her sources.
In its General Comment No. 34, the UN Human Rights Committee defined journalism as follows:
"Journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the internet or elsewhere, and general State systems of registration or licensing of journalists are incompatible with paragraph 3. Limited accreditation schemes are permissible only where necessary to provide journalists with privileged access to certain places and/ or events. Such schemes should be applied in a manner that is non-discriminatory and compatible with article 19 and other provisions of the Covenant, based on objective criteria and taking into account that journalism is a function shared by a wide range of actors."
The UN Human Rights Committee has therefore taken a functional approach to the definition of journalism. In other words, journalism is an activity, which consists of the collection and dissemination of information to the public via any means of mass communication.
Regulation of bloggers and citizen journalists Registration
The UN Human Rights Committee’s definition of journalism (outlined above) clearly shows that, like professional journalists, bloggers should not be subject to registration or licensing requirements. Similarly, they should be accredited only where this is necessary to get privileged access to certain places and/or events.
Civil and criminal liability
The law does not generally make any distinctions between journalists and the rest of the population for the purposes of civil or criminal liability. Accordingly, bloggers and citizen journalists are not immune to the application of laws such as defamation laws. Nonetheless, the question arises as to whether bloggers and citizens should benefit from the same legal protections as journalists when they undertake the activity of journalism.
Legal protection
There are no set international legal standards concerning the legal protection which should be afforded to citizen journalists and bloggers at present. However, in the same way that bloggers have a duty, like any other citizen, to obey the law, they can also make use of the defences available to citizens under the law.
The question of whether bloggers and citizen journalists can avail themselves of legal principles governing the protection of sources is more controversial. For example, in Europe, the the Council of Europe (COE) has taken a similar approach in its recent Recommendation CM/Rec (2011)7. The Council of Europe's Committee of Ministers stated that:
"[T]he protection of sources should extend to the identity of users who make content of public interest available on collective online shared spaces which are designed to facilitate interactive mass communication (or mass communication in aggregate); this includes content-sharing platforms and social networking services. Arrangements may be needed to authorise the use of pseudonyms (for example in social networks) in cases where disclosure of identity might attract retaliation (for example as a consequence of political or human rights activism)."
However, it is not clear from the recommendation whether a blogger or citizen journalist could avail himself or herself of the protection of sources in relation to information received from internet users or others. Nonetheless, the Committee of Ministers has recommended that some form of support and protection should be provided to those media actors, e.g. bloggers, who do not fully qualify as media under a number of criteria set forth by the Committee but who do ‘participate in the media ecosystem’.
An extract from "Freedom of expression and ICTs: Overview of international standards" by Article 19: https://www.article19.org/data/files/medialibrary/37380/FoE-and-ICTs.pdf